William Boyd Tucker v. Ralph Kemp, Warden , 762 F.2d 1480 ( 1985 )

R. LANIER ANDERSON, III, Circuit Judge:

William Boyd Tucker was tried in the Superior Court of Muscogee County, Georgia, for the August 1977 murder of Kathleen Perry. He was convicted of murder, kidnapping with bodily injury, and robbery by intimidation. The jury sentenced Tucker to death for the murder and lesser terms for the other crimes. His convictions and sentences were affirmed by the Georgia Supreme Court and a petition for writ of certiorari to the United States Supreme Court was denied. Tucker v. State, 244 Ga. 721, 261 S.E.2d 635 (1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 250 (1980).

Tucker sought habeas corpus relief in the state courts but was unsuccessful. The state supreme court refused to hear an appeal and the United States Supreme Court denied Tucker’s second petition for writ of certiorari. Tucker v. Zant, 454 U.S. 1022, 102 S.Ct. 555, 70 L.Ed.2d 417 (1982). Tucker then filed the instant habeas corpus petition in the federal district court. Relief was denied. On appeal, a panel of this court considered six constitutional claims and granted relief on the ground that improper prosecutorial argument had rendered Tucker’s sentencing hearing “fundamentally unfair.” See Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). The Court rejected all other asserted grounds for relief. Tucker v. Zant, 724 F.2d 882 (11th Cir.1984).¹ We voted to reconsider en banc the prosecutorial argument at sentencing issue, thereby vacating the panel opinion. 724 F.2d 898 (11th Cir.1984) . We now affirm the district court’s denial of relief on the prosecutorial argument claim and reinstate the panel opinion in all other respects.

Part I of this opinion outlines the relevant facts of Tucker’s case. Part II discusses the standard for reviewing claims of improper prosecutorial argument. See Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985) (en banc). Part III considers the alleged improprieties in this case. Finally, Part IV determines whether the improper arguments warrant granting Tucker a new sentencing hearing.

I. FACTS

Kathleen Perry was working alone as a clerk in a Majik Market in Columbus, Georgia, on the night of August 20, 1977. Witnesses placed Tucker in the store shortly before midnight. Shortly after midnight, two customers entered the store, noted that no employee was on the premises, and called the police.

At approximately 1:00 a.m. on August 21, three Columbus residents driving in a pick-up truck passed a red Volkswagen parked with its lights on. They looked inside the car, saw Tucker at the wheel, and noticed a shoe on the pavement. After driving approximately one-fourth of a mile, they turned to go back and the Volkswagen passed them. Returning to the spot where the car had been parked, they found the shoe, a Majik Market vest, a bra, and the body of Kathleen Perry. She had been stabbed to death; the medical evidence suggested that she bled to death within 4 to 6 minutes. The police were notified.

While the police were on the scene with the witnesses who found the body, a red Volkswagen approached. The witnesses identified the driver as the man they had seen earlier. William Boyd Tucker was arrested and gave a confession in which he admitted to robbing and kidnapping Perry and forcing her to commit oral sex upon him. He claimed not to remember anything else except that there had been a knife and much blood.

Given this evidence, the jury found Tucker guilty of murder, robbery, and kidnapping. Although the indictment also charged Tucker with aggravated sodomy, a directed verdict was entered on the charge because Georgia law disallows convictions based solely on uncorroborated confessions. Ga.Code Ann. § 24-3-53 (1982).

Because the district attorney’s office had chosen to seek the death penalty in this case, the sentencing hearing required by the Georgia capital punishment statute commenced. Ga.Code Ann. § 17-10-2(c) (1982). The state introduced no new evidence relative to punishment. Various defense witnesses testified to Tucker’s previously peaceful nature and the stress placed upon him by the death of his father three months before the crime. Tucker and his mother explained that his use of drugs and marijuana had become a serious problem after his father’s death. Tucker explained that he had been drinking and smoking heavily the day of the crime and continued to claim a lack of memory about the actual killing. He also expressed remorse for the crime and hoped that he could rehabilitate himself while in prison. Tucker had never been in trouble with the law before.

After this evidence was introduced, closing arguments were delivered for the state and the defendant.² The jurors were then instructed and began their sentencing deliberation. After a short time, the jury returned a verdict of death.³

II. STANDARD OF REVIEW

In Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985) (en banc), this court considered the standard for federal habeas corpus review of alleged errors in prosecutorial closing arguments. The standard, first explicitly discussed in Donnelly v. De-Christoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), is not whether the complained-of comments are egregious or “universally condemned,” but whether they rendered the defendant’s trial “fundamentally unfair.” 416 U.S. at 642, 94 S.Ct. at 1871. To make that determination vis a vis argument in a capital sentencing hearing, a reviewing court should ask whether there is a reasonable probability that, in the absence of the offending remarks, the sentencing outcome would have been different. Brooks v. Kemp, 762 F.2d at 1402; see Strickland v. Washington, — U.S. -,-, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1974).⁴ A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Id. at-, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

Our review is obviously only concerned with the possible effect of improper arguments. We must therefore examine the closing argument in this case and isolate sections which were impermissible. We then can determine whether there is a reasonable probability that they changed the outcome of Tucker’s sentencing hearing.

III. PROPRIETY OF PROSECUTORIAL ARGUMENT

Tucker challenges various arguments made by prosecutor Gray Conger in his closing argument at the sentencing phase.⁵ A Georgia prosecutor may argue subjects relevant to the capital sentencing jury’s decision. As a general matter, proper areas of argument include the facts of the crime, the individual characteristics of the defendant (including future dangerousness and rehabilitative prospect), and the valid penological justifications for the death penalty (retribution, incapacitation, and general deterrence). Brooks v. Kemp, 762 F.2d at 1406-1408. We will now examine the arguments complained of by Tucker to see if they exceeded those legitimate sentencing considerations.

1. Conger began his closing argument on the following note:

I’ve been here a number of years in the District Attorney’s Office and I’ve tried a number of cases, many cases as a matter of fact, and the death penalty is seldom requested in Columbus, it’s very infrequently requested. And since I’ve been here, it’s been requested as a matter of fact, something less than a dozen times. It’s not very often that we come in here and ask you to bring in a verdict of a death sentence on an individual.

Tucker claims that this argument improperly put the prosecutor’s “expertise” before the jury as a reason for imposing the death penalty.

We have held such arguments to be improper. Brooks v. Kemp, 762 F.2d at 1410. This discussion of the prosecutor’s infrequency of seeking death was not supported by any evidence before the jury. It is wrong for the prosecutor to tell the jury that, out of all possible cases, he has chosen a particular case as one of the very worst. While facts of the crime can be stressed to show the seriousness of the case,⁶ the prosecutor’s careful decision that this case is special is irrelevant and is potentially prejudicial. Such comments, made by an experienced prosecutor, may alter the jury’s exercise of complete discretion by suggesting that a more authoritative source has already decided the appropriate punishment. We will consider the impact of the statement in Part IV of the opinion.

2. Tucker next complains of various instances in which Conger asserted his personal opinion on matters before the jury. Conger asserted that Tucker could never be rehabilitated, arguing “I’d move to Russia before I’d live next door to this man.” He explained how he would feel if Tucker was executed:

[I]f he is executed, and if you bring in a verdict of guilty, I’ll sleep just as good, or I’ll sleep better knowing that one of them won’t be on the street. Knowing that one of them will be gone. It’s not all of them, but it’s better than none.

Conger also gave this long statement about the deterrent value of the death penalty:

Well, Mr. Cain is probably going to get up here and tell you that he doesn’t believe or the evidence is that punishment, or capital punishment, does not deter others from similar criminal activity. Well, to me ladies and gentlemen, I don’t believe it. I don’t believe that. You can count me as one of those people who believes that a person receiving a death sentence has got to have some effect on somebody. And ladies and gentlemen, when an execution occurs, whenever an execution occurs, it has got to have some effect on somebody who is planning some criminal activity somewhere. You can’t tell me that if this man is executed some potential killer somewhere, maybe not in Columbus, tnaybe somewhere else, but it doesn’t matter because it’ll be somebody’s daughter that’s saved. You can’t tell me that somebody ain’t going to hear about that thing over there being punished, being executed, and is not going to say I’m not going to take the chance because the death sentence is enforced and they execute people for doing this kind of thing. There is no way it’s not a deterrent.

An attorney’s personal opinions are irrelevant to the task of a sentencing jury. Brooks v. Kemp, 762 F.2d at 1408; United States v. Morris, 568 F.2d 396, 401 (5th Cir.1978);⁷ see also ABA Standards for Criminal Justice 3-5.8(b) (“It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant”). Conger’s ability to sleep well, or his disingenuous claim that he’d “move to Russia” should not have been put before the jury. The comments will be further considered in Part IV.⁸

3. Tucker complains that Conger’s remarks attempted to dilute the jury’s sense of responsibility for a verdict of death. He focuses on the following argument:

[The defense attorney will] mention that, well, can you sleep well if this man is executed? Won’t it bother you if you ever read about it or hear about it whenever it happens? But I for one want to tell you that you are not the ones who did it if he is executed. It does not rest on your shoulders, ladies and gentlemen. Policemen did their duty and they went out and made the case. The grand jury down there did its duty and it indicted him and charged him with these horrible offenses. The district attorney’s office prosecuted the case, located the witnesses, and brought them in. The judge, the court came in and presided at the trial. And ladies and gentlemen, you are the last link in this thing, and if this man suffers the death penalty it’s no more up to you than it is to anybody else, the grand jury or the police, or the district attorney’s office. All of us are coming in and doing our duty.

Arguments that trivialize the task of a capital sentencing jury are improper. McGautha v. California, 402 U.S. 183, 208, 91 S.Ct. 1454, 1467, 28 L.Ed.2d 711 (1971) (it is essential that jurors recognize “the truly awesome responsibility of decreeing death for a fellow human [so that they] will act with due regard for the consequences of their decision”); Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977) (improper to argue to capital sentencing jury that appellate court will correct any -errors); see also Brooks v. Kemp, 762 F.2d at 1411. This argument, by suggesting that the jury is only the last link in a long decision, does have the effect of trivializing its importance. It was therefore improper and it will be considered in Part IV.⁹

4. Conger argued that Tucker would not be rehabilitated and opined that society could not take a chance on him. Tucker claims that this kind of argument was overly emotional and thus barred by the rationale of Hance v. Zant, 696 F.2d 940 (11th Cir.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983).

In Brooks v. Kemp, we considered and limited the language from Hance that dramatic appeals “to gut emotion [have] no place in the courtroom, especially in a case involving the'penalty of death.” 762 F.2d at 1404-1405, citing Hance v. Zant, 696 F.2d at 952-53. Our main concern is not with the emotional tenor of an argument, but with the propriety of its content. It is proper for a prosecutor to argue about the future dangerousness of a defendant. Brooks v. Kemp, 762 F.2d at 1406. The general assertions made by Conger about Tucker’s danger to society did not exceed those proper bounds.

5. Conger made an argument about the safety of prisoners and prison guards if Tucker were to receive a life sentence:

[I]f he goes to the penitentiary with his propensity to do what he’s done, others will be placed in jeopardy, because he’ll be in there with other young prisoners. He’ll be in with people who might be in there for car stealing, or marijuana or something, lesser offenses like that, he’ll be mixed in there with young kids and they’ll be exposed to him, they’ll get his influence. We know about his perverted sexual habits. Ladies and gentlemen, tyg know ahnntUhis inability to control his desire to kill. Other prisoners’ will be in there and they will be subjected to him. Do we want to put young people in his presence as it could be done in Reidsville or wherever he goes to the penitentiary? He could kill them. I submit to you, ladies and gentlemen, that we can’t afford to have this man in our society.

Now, what about the guards who would be guarding him down there? The guards would be, of course, exposed to him.

This argument was an appropriate means of pointing out the possibility of Tucker’s future dangerousness and did not call for a speculative inquiry into prison conditions. See Brooks v. Kemp, 762 F.2d at 1411; see also California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983).

6. Conger referred to the vast expense of taxpayer’s dollars that would be needed if Tucker were to receive life imprisonment. The remark was unsupported in evidence and completely alien to any valid sentencing consideration. Brooks v. Kemp, 762 F.2d at 1411. It will be examined further in Part IV.

7. Conger mentioned Tucker’s “lust,” “perverted sexual desires,” and “perverted sexual habits.” These were references to Tucker’s confession that he had forced the victim to commit oral sex. Although Tucker was indicted on an aggravated sodomy charge, a directed verdict was entered on that count. Tucker claims that these comments were improper references to facts not in evidence.

Because the confession was never stricken from the jury’s consideration, the admission of sexual assault was in evidence. The question here is whether, following a directed verdict, evidence on the sodomy charge could still be mentioned at sentencing. We believe that the argument was proper.

The information relative to a sentencing decision is very broad. United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). Even though capital sentencing is more formal than non-capital sentencing, restrictions which would limit consideration of evidence at trial are not always applied to capital sentencing. Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (violates due process to apply state hearsay rule so as to exclude testimony offered in mitigation at capital sentencing). The breadth of sentencing information insures that the decision will be appropriately individualized.

One class of information which is particularly relevant to the sentencing decision is the defendant’s previous criminal activity.¹⁰ In addition to previous convictions, it is acceptable to consider evidence of crimes for which a defendant has been indicted but not convicted. United States v. Martinez, 584 F.2d 749, 750 (5th Cir.1978). Activities for which there has been no charge filed can be considered as well. Horowitz v. Henderson, 514 F.2d 740 (5th Cir.1975). See generally Campbell, The Law of Sentencing, § 90 (1978). In general, the relevant inquiry for information at sentencing is whether it is reliable. Zant v. Stephens, 462 U.S. 862, 863, 103 S.Ct. 2733, 2734, 77 L.Ed.2d 235, 236 (1983).

In this case, Tucker’s confession contained an admission of sexual assault. Although a directed verdict was entered because of the lack of corroborating evidence, the admission was still properly before the jury. Conger’s remarks were reasonable inferences from the evidence and relevant to the question of sentence.

In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court held that the constitutional protection against double jeopardy forbids the re-litigation in any future criminal trial of an issue necessarily resolved by an acquittal in a prior criminal case. While the rule in Ashe has not yet been extended to bar evidence underlying an acquittal from use in sentencing, we recognize that capital sentencing is a more formal, trial-like proceeding to which many constitutional protections are applicable. See, e.g., Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981) (because capital sentencing is formal in nature, constitutional protection against double jeopardy applies). Thus, while not deciding the issue, we note that Ashe may very probably be interpreted to block re-litigation of a factual issue at the sentencing phase of a capital trial following an acquittal on the same evidence at the guilt phase.¹¹ Assuming arguendo such an interpretation, this principle would not prohibit the use of Tucker’s confession following the directed verdict in this case. Unlike a general jury verdict of acquittal on the sodomy count, which would probably be read as conclusive as to Tucker’s non-participation, the directed verdict by the trial judge here was on the technical statutory ground that corroborating evidence was not introduced. See Ga.Code Ann. § 24-3-53 (1982). Thus, whether or not Tucker forced Kathleen Perry to engage in oral sex was not conclusively litigated at the guilt stage of his trial. As such, the rationale of Ashe would not mandate exclusion of the evidence at sentencing.

Conger’s reference to the evidence of sexual assault was not improper.

IV. WAS TUCKER’S SENTENCING HEARING FUNDAMENTALLY UNFAIR?

Four of the arguments made by Conger were improper — the discussion of the prosecutor’s policy of infrequently seeking the death penalty (the “prosecutorial expertise” argument), the use of personal opinions in discussing Tucker’s chance for rehabilitation, the suggestion that the jury was but one link in the decision (the “jury dilution” argument), and the reference to the burden on taxpayers which would flow from a life sentence. Because the evidence of the statutory aggravating circumstance was amply supported in this case,¹² we do not believe that the improper arguments affected that threshold finding. Given the existence of an aggravating circumstance, Tucker was rendered eligible for the death penalty under Georgia law. We must, however, determine whether there was a reasonable probability that the improper arguments changed the jury’s exercise of discretion in choosing between life imprisonment and death. See Brooks v. Kemp, 762 F.2d at 1408 (Georgia sentencing jury has two tasks; prosecutorial argument affecting either task may warrant relief).

The principal error was Conger’s prosecutorial expertise argument. Such argument suggests that the prosecutor’s office has already made a careful decision that the defendant deserves death. That authoritative suggestion improperly invades the jury’s complete discretion at the penalty phase.

While we recognize the potential for prejudice in this argument, there was some mitigation of its adverse impact. First, Conger’s claim that this case was particularly serious was followed by an explanation of how the prosecutor arrived at that conclusion, which the jury was free to assess for itself. He discussed the horrible nature of the crime and the strength of the evidence. By explaining these justifications, he enabled the jury to consider whether the death penalty was indeed appropriate on the facts of the case. This mitigated somewhat the suggestion that the jury should simply trust Conger’s judgment as to the seriousness of the case.

In addition, the defense counsel rebutted the notion of prosecutorial expertise in his closing argument. Responding to Conger’s claim that the case was especially bad, Tucker’s attorney said:

I have been at this bar as long as Mr. Conger, there has not been a request for a death case that I know of on any first-offender, 22 years old, in Muscogee County, Georgia.

Finally, the thrust of the entire sentencing phase emphasized the discretion of the jury in imposing punishment. Both closing arguments and the trial court instructions were clear that the jury had responsibility for the choice. This clarity of emphasis convinces us that the jurors understood both the importance of the decision and the fact that a prosecutor’s choice to seek death did not limit their own discretion.

Conger’s jury dilution argument was similar to the prosecutorial expertise comment, though less damaging. Although the argument could be read in isolation as a trivialization of the jury’s role, the principal thrust of the sentencing proceeding emphasized the jury’s importance. The jurors were repeatedly instructed by the court that the matter of punishment was “entirely within your discretion.” This emphasis belies the alleged effect of the jury dilution argument and also renders the isolated personal comments by Conger relatively harmless.

Finally, Conger’s reference to the “thousands and thousands and thousands of taxpayer’s dollars” that would have to be spent imprisoning Tucker for life was clearly unprofessional and improper. However, because of its brevity, we do not believe that the remark had a great adverse impact.

In reviewing the cumulative effect of Conger’s improper arguments, we do not find that they were strongly prejudicial. Although the prosecutorial expertise argument might under some circumstances mislead a sentencing jury, here it was mitigated in substantial measure, as were the personal opinion and jury dilution arguments, by the more pervasive thrust of the sentencing hearing. The taxpayer argument was very brief. Together, these arguments did not have a severely prejudicial impact.

It is true that Tucker presented substantial evidence to mitigate his culpability for the crime. In addition to the fact that he was a first-offender, there was testimony about emotional trauma in his life at the time and a possible intoxication on the night in question. On the other hand, this was a very serious crime. We do not view the relatively small prejudicial impact of the improper arguments as undermining confidence in the sentencing verdict. We conclude that there is not a reasonable probability that, but for the few improper arguments, the sentence would have been different. We therefore affirm the district court’s denial of relief on the prosecutorial argument issue.

AFFIRMED.

1 . The other constitutional claims were (1) that an instruction in the sentencing phase was infirm, (2) that counsel was ineffective at trial and on appeal, (3) that the Georgia Supreme Court failed to review properly Tucker’s sentence, (4) that evidence was insufficient to prove a necessary statutory aggravating circumstance, and (5) that the district court improperly denied an evidentiary hearing.

2 . The prosecutor, Gray Conger, delivered an argument which takes up 17 pages of the trial transcript. Most of the argument focused on valid sentencing concerns; we will consider the allegedly improper arguments in Part III of this opinion.

3 . Under Georgia law, the death penalty cannot be imposed for a capital crime unless the sentencing jury finds the existence of at least one statutory aggravating circumstance. Following such a finding, the jury has complete discretion to choose between death or life imprisonment for the defendant. Zant v. Stephens, 250 Ga. 97, 297 S.E.2d 1 (1982). In this case, the jury found as an aggravating circumstance that the murder was committed during the commission of another capital felony (kidnapping with bodily injury). It then was authorized to exercise its broad sentencing discretion and choose death as the penalty.

4 . Tucker argues that the appropriate standard of review should consider not only the “fundamental fairness” implicit in the Due Process Clause of the Fourteenth Amendment, but also the heightened reliability required in capital sentencing by the Eighth Amendment. We believe that the “reasonable probability" test adopted from Strickland v. Washington, - U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), can take into account the special nature of a capital sentencing proceeding. See — U.S. at-, 104 S.Ct. at 2073-74, 80 L.Ed.2d at 704-06 (Brennan, J., partially concurring). Justice O’Connor’s majority opinion defined reasonable probability as a "probability sufficient to undermine confidence in the outcome.” — U.S. at -, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Such a formulation does capture the Eighth Amendment’s requirement that capital sentencing be reliable. Even if improper arguments are made by a prosecutor, the sentencing should not be disturbed if a reviewing court is confident that the outcome rested on valid sentencing considerations.

5 . Tucker’s counsel entered no objection during Conger’s closing argument. Even though conventional professional courtesy may militate against objection during closing argument to the jury, the interest of the client may require it. The lack of a defense objection can be a factor in the review of a prosecutor’s closing argument. Brooks v. Kemp, 762 F.2d at 1397 n. 19. Because the arguments themselves did not rise to the level of a constitutional violation, see infra Part IV, we do not give independent consideration to the failure to object.

6 . The prosecutor, for example, discussed why this particular case compelled death and focused on the overwhelming evidence of guilt. Given that the jury had already litigated Tucker’s guilt, comments about the strength of the evidence were acceptable at the sentencing phase. See Brooks v. Kemp, 162 F.2d at 1402 n. 26.

7 . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Id. at 1209.

8 . The discussion about deterrence, while it improperly used the personal pronoun "I”, was not an improper argument. The sentencing jury is entitled to consider deterrence, a valid capital sentencing objective. Brooks v. Kemp, 762 F.2d at 1406-1408. It is not entitled, however, to consider the prosecutor’s own feeling of safety or satisfaction about a verdict.

9 . The argument in this case is similar to one ruled proper in Brooks v. Kemp, 762 F.2d at 1395, 1411. The argument in Brooks, however, was explicitly focused on the claim that Brooks was himself responsible for his own punishment. The remarks made could not be clearly interpreted to mean that, because of activities of police, judge and prosecutor, the jury’s task was made.relatively less important. Here, however, Conger’s discussion of the jury’s position as only one link in the chain was not mitigated by a principal focus on the responsibility of the defendant.

10 . The bifurcated procedure used in capital cases was created, in part, so that criminal activity could be fully explored with regard to sentencing without affecting the jury’s adjudication of guilt. Gregg v. Georgia, 428 U.S. 153, 190-91, 96 S.Ct. 2909, 2933, 49 L.Ed.2d 859 (1976).

11 . For cases applying the Ashe principle to bar re-litigation of facts underlying an acquittal in a subsequent prosecution, see United States v. Whitaker, 702 F.2d 901 (11th Cir.1983); United States v. Henry, 661 F.2d 894 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 992, 102 S.Ct. 1619, 71 L.Ed.2d 853 (1982); Wingate v. Wainwright, 464 F.2d 209 (5th Cir.1972).

12 . See supra note 3.